Date Of Decision: 30.12.2022 vs State Of H.P. & Another
2022 Latest Caselaw 11776 HP

    IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA




                                                                           .

                                                Arb. Case No. 153 of 2022.
                             Date of decision: 30.12.2022
    ____________________________________________________
    Narain Dass Naik                         ...Petitioner





                               Versus

    State of H.P. & another                ...Respondents
    __________________________________________________




    Coram:
    The Hon'ble Mr. Justice A.A. Sayed, Chief Justice
    Whether approved for reporting?1
    _____________________________________________
    For the petitioner :
                        r               Mr. Suneet Goel, Advocate.

    For the respondents:                Mr. Yudhvir Singh               Thakur, Deputy
                                        Advocate General.


    A.A. Sayed, Chief Justice (Oral)

This Application is filed by the petitioner invoking

Sections 14 and 15 of the Arbitration and Conciliation Act, 1996

(for short, "the Act") seeking termination of the mandate of the

Arbitrator (i.e. Superintending Engineer, Arbitration Circle,

HPPWD, Solan) and appointment of a substitute Arbitrator.

2. The petitioner had invoked Clause-24 of the

Agreement executed between the parties seeking appointment of

an arbitrator and the Superintending Engineer, Arbitration Circle,

HPPWD, Solan, came to be appointed as sole Arbitrator, who

Whether the reporters of Local Papers may be allowed to see the judgment?

entered upon a reference on 11.01.2012. The statement of claim

.

was filed by the petitioner in the 4th hearing held on 05.10.2013. It

is averred in the Application that as many as nineteen hearings

have taken place, however, the arbitration proceedings have not

been concluded. On 30.11.2016, the Arbitrator directed the

parties to amicably resolve the disputes and a meeting was

convened in the office of the

Superintending Engineer, 1st Circle, HPPWD, Mandi.

The petitioner then approached the said Authority, but there was

no outcome.

3. It is pointed out that neither the Authority to

whom the matter was delegated for amicable settlement by the

Arbitrator had taken the matter further nor the Arbitrator had

decided the reference despite lapse of more than ten years. It

is further pointed out that there was no regular incumbent on the

post of Superintending Engineer, Arbitration Circle,

HPPWD, Solan, for the last one year.

4. There is no reply-affidavit filed by the respondents,

opposing the Application.

5. The learned counsel for the petitioner has invited

.

attention of the Court to Section 14 of the Act (as it stood at

the relevant time), which reads as under:

"14. Failure or impossibility to act. (1) The mandate of an arbitrator shall terminate and he shall be substituted by another

arbitrator, if--

(a) he becomes de jure or de facto unable to perform his functions or for other reasons fails to act without undue delay;

and

(b) he withdraws from his office or the parties agree to the termination of his mandate.

(2) If a controversy remains concerning any of the grounds referred to in clause (a) of sub-section

(1), a party may, unless otherwise agreed by the parties, apply to the Court to decide on the

termination of the mandate.

(3) If, under this section or sub-section (3) of section

13, an arbitrator withdraws from his office or a party agrees to the termination of the mandate of an arbitrator, it shall not imply acceptance of the validity of any ground referred to in this section or sub-section (3) of section 12."

6. In the present case, the arbitral proceedings are

pending since the year 2012, and despite passage of more than

ten years, the Arbitrator has not held any effective hearing and

.

the closure of the arbitral proceedings is nowhere in sight.

7. Having regard to the facts and circumstances of the

case, I have no hesitation in holding that the Arbitrator has

become de jure or de facto unable to perform his functions and

has failed to act without undue delay and a case is made out by

the petitioner for this Court to exercise powers under Section

14(1)(a) of the Act. Hence, the following order:

ORDER

(i) Mr. N.K. Sood, Senior Advocate, is appointed

as substitute Arbitrator to adjudicate the

disputes and differences between the parties

under the Agreement, in place of the Superintending

Engineer, Arbitration Circle, HPPWD, Solan, whose

mandate shall stand terminated;

(ii) The learned Arbitrator, before entering the

arbitration reference, shall forward

a statement of disclosure as per the requirement

of Section 11(8) read with Section 12(1) of the

Arbitration and Conciliation Act, 1996, to the

Registrar (Judicial) of this Court (to be placed

on record of this application) and a copy thereof

.

be forwarded to the parties;

(iii) The parties shall appear before the Arbitrator

on a date which may be fixed by the learned

Arbitrator, not later than four weeks from the

date of receipt of copy of this order by him;

(iv) The fees payable to the Arbitral Tribunal shall

be as prescribed in the Fourth Schedule

appended to the Arbitration and Conciliation

Act, 1996;

(v) Office to forward a copy of this order to the

learned Arbitrator on the following address:

                     "Mr.  N.K.    Sood,    Senior    Advocate,
                     4,   Pandit    Padem     Dev      Complex,





                     Phase-1, The Ridge, Shimla, H.P."

8. The Application is allowed in the above terms.

( A.A.Sayed ) Chief Justice

December 30, 2022 (hemlata)